Transcription
Hi everyone, Harry here with a big, and I would say, disconcerting news. The DC Circuit has vacated on a writ of mandamus. I'll explain that a little bit more. The contempt show cause order entered by Judge Jeb Booseberg. All right. All of this dates to the original crisis, uh, that the administration initiated back in mid-March when, late at night, with very little fanfare, Trump issued an order under the Alien Enemies Act, purporting to authorize the, um, deportation of all kinds of people. This is the order that resulted in the shipping of a few hundred people, including a few patently against standing orders, and all of them without due process, to El Salvador's CCOT prison.
All right, these are really tangled proceedings, but let me just try to emphasize what was necessary to set up this case. But you may remember, there's all kinds of mischief from the administration, and mainly in the person of recently confirmed circuit court judge Emil Boove. So the lawyers for the immigrants get word on a Saturday afternoon that all of a sudden, uh, clients and people are being, like, ushered onto planes, and planes are taking off, and they're not being, uh, given any due process rights. They're not given notice, opportunity to be heard, and the like.
A principle, by the way, that the Supreme Court decided in affirming Judge Boseberg was wrong. And to the extent people, um, talk about Boseberg's being reversed, it's only in this narrow procedural way that the court said that the right way to do it would be on habeas corpus for individual prisoners and individual districts. Something that is, um, really not of great moment for what Boseberg generally was doing, although exploited by two of the judges here, as I'll explain. So Boseberg, that part is reversed, as I say, and now he commences, as do other judges, to try these cases and the claims of aliens that they haven't been given due process, and they have to be. And it's clear the, um, administration just ran roughshod, uh, over them. So that continues.
But in the meantime, Boseberg, a really, as the dissent here says, exemplary judge. And I just want to emphasize that within the courthouse in DC, what everyone understands is that Boseberg is a total solid, law-abiding, down-the-middle, careful, meticulous, intelligent judge. And he doesn't want, and sort of good for him. The administration tries to get him again and again, just forget this contempt stuff. It's all over now. Why are you being so silly? The dog ate it. We're doing this now. And Boseberg, I think, understanding that he's sort of speaking for his entire bench of 10 or more folks who have really been jerked around by the administration, he does not let the contempt go. He says, "Even though the Supreme Court reversed on the merits, I issued this order. You, it seems to me, violated this order knowingly." That is contempt territory, and it has to be criminal contempt territory, 'cause civil contempt is just something that is designed to force an administration to fall into line, or anyone to fall into line. You hold the keys to the, the, uh, your liberty, as it said. And this is to penalize what he has very strong reason to think, and I'm sorry, everything we found out, uh, since then, including the whistleblower complaints in the Bo confirmation, suggests very strongly was simple dereliction of his absolutely lawful, meticulous order by the administration, and total contempt territory.
All right. So, all he says is, "I'm really serious about this. I want to look into it. I want to get some evidence. I want to get some discovery about what you guys, uh, did." He gave them a choice, the administration, to just basically, um, assert jurisdiction, as it's clear they had, even though they were disclaiming it over the people. Bring them back. In that case, they would, they wouldn't go through the contempt process, but he, but he has not let it go. And good for him that he hasn't.
Now, enter the DC Circuit. And it just so happens the motions panel. It's a roll of the dice. But two of them are, are two of the three most conservative members of that court: Judge Greg Katus and Judge Nomi Ralph. And, um, I hate so much, you know, um, describing or, um, putting stock in who appointed them, etc. Um, but just quickly, Katsus and Ralph are both Trump appointees, and I do think Ralph has given real cause for concern that she is, you know, auditioning to go on the Supreme Court. I'll just put that out there. Um, and, and now proceed to what they did.
So Boseberg says, "I'm going to try this in contempt." They go, of course, as they always do, the administration, and asks for emergency relief. The court of appeals three months ago gave a very quick stay that's designed literally for like a day or two, to just decide whether they would grant them the stay. Nothing has happened since. And it really mattered in the Bo nomination battle had it gone forward as it was designed to. And had the chief judge of the district court found Bo had done action that put the United States in contempt, it would have been very hard for the Republicans to just ignore it. But as it turned out, they kept it for many months. And not just capriciously, we now know what was happening, which is to say, four different opinions: one for the court, and three separate opinions by the three judges, Katsus, Ralph, and Judge Pillard, an Obama appointee who dissented. And it all turns on pretty arcane legal procedural stuff. Uh, so I, you know, we don't have to master, uh, civil procedure, uh, to sort of basically understand. Let me just sketch out what's going on.
First, we've had many cases, uh, maybe this will sort of ring a bell. It's always been a little bit confusing, but in general, this form of temporary relief by a district court, a court of appeals is not supposed to reverse. They don't, indeed, they don't have jurisdiction to reverse it. And there's been a lot of fights. Does this sort of ring a bell where higher courts have said, "But we're going to construe it, even though it says it's temporary relief, which we are powerless to reverse, we're going to construe it as an actual injunction that we have power to reverse," and we go ahead and reverse it and the like? That comes up first. And the DC Circuit is solid, solid, is is lawful on it. They say all three of them say, "We don't have jurisdiction for the main part of what the US is trying to get us to do." Uh, we can't, uh, look at, in just a sort of direct appeal kind of way, the, um, order that was granted. That's the sort of thing that, uh, it just stays for a couple days until the district court deals with it. That's one of the reasons they weren't expected to keep it this long. So they all agree there, including Pillard.
But two of them say, "We have still another thing we can do. It's a higher bar, mandamus." And that is the sort of ultimate all-purpose writ, but man, oh man, it's a very high showing you have to make to grant mandamus. And, uh, so that's part of what gives Pillard a pretty strong argument in dissent. Mandamus, guys, really, there's nothing here that justifies mandamus, okay? But Katsus and both say that there is. Katsus' basic argument is, remember, Boseberg makes two different f, uh, orders. One's this oral order at 5:15 on a Saturday: "Don't let those, if those, if you've sent those planes out there, bring them back." And then there's a written order that says you can't remove people. Katsis says, well, he goes through this whole long dictionary thing. Maybe what Booseberg was saying is you can't, and I think this is what Booseberg was saying, you may not give them over to El Salvador and lose jurisdiction and then come back to me and say, "Oops, sorry, too late. We can't do anything." Precisely what the administration did. Or maybe what, uh, removal meant was you can't take them out of US territory. Now, that's a lousy argument. There's no reason Boseberg would say that because, as came up again and again, there's still jurisdiction. Boseberg can still say whether they're in US territory or not, bring them home. But Katsus' whole big thing is maybe that's all that was meant. It's too late to comply with that now. This is criminal contempt. So you have to really, uh, call it in favor, any doubts in favor of the potential criminal contemptor. And so it's really all about what does removal mean? Does it mean give them over to the custody of another, uh, country, or take them outside the territory? I interpret that, says Boseberg, as ambiguous, and therefore I'm going to say I'm going to grant mandamus, again, very high standard, and say the district court shouldn't have done it. And by the way, necessarily, both these judges just trash, um, Boseberg. There's a couple little statements about he, you know, he tried hard, etc., no fault of his, but, you know, the, uh, this is a guy who, in order to grant mandamus, you got to say how totally out of bounds the district court was. And especially Ralph has no hesitation in doing it, compounding the terrible error, blah, blah, blah, which is on top of everything else, so completely unfair.
All right. Ralph says that there's something to it, but she makes a big deal in sort of, you know, "Don't you love me, uh, conservatives and White House way of saying we have real separation of powers concerns because this is the administration, and it's immigration, and it really matters." And once you load up the whole, um, issue with that, then you make it to this high standard for mandamus. That's essentially her, you know, making a whole kind of separation of powers, "Look at me. I'm really solicitous of the executive power here." And then Pillard's basically, "Are you kidding me? You know, there is nothing here that even remotely approaches the standards for mandamus." I agree. No, we can't do an administrative stay because we don't have jurisdiction. The point I was talking about a moment ago, um, with, um, the sort of stay that it was, but, you know, mandamus, clear and indisputable right that justifies it. She really, you know, goes through why Boseberg is so completely not just within his rights, but within the proper role of a judge in not permitting, uh, you know, contempt. It's the right word in law, it's the right word in English to be shown for these orders, which is 100% from what we know. He was all he was going to do at this point was take discovery. But, you know, three whistleblowers say Bo says those planes are landing no matter what. No matter what means we don't care what the judge says. He says we have to consider saying you to the court. That's pretty clear. The record's very clear. And, and, uh, Pillard says, especially since we all agree we've got to get to mandamus, you guys are just completely off-the-wall in thinking that it is satisfied here. So that's where it stands.
You can expect the ACLU to try to appeal. And in the first instance, and this is important, the last, uh, point I wanted to leave you with, um, to the en banc court. You know, on the one hand, it's precise and abuse. On the other, the stakes are really high. And among other things, I think any judge worth her, his salt would be really looking to do what they ought to do here, which is have Boseberg's back. He acted perfectly appropriately. He, and then his reward for it, it's a little bit like Jack Smith. Uh, his reward for it is this toddry, asinine, uh, complaint by Bondi that that he, uh, you know, somehow, um, violated basic judicial standards of conduct. And now this, where, you know, the opinion says repeatedly, 'cause it sort of has to to get to the mandamus standard, you know, how badly he screwed up. So, um, there the DC Circuit, I think, is seven to four. There's a majority of Democrats, and I think they would agree with Pillard's position and disagree. Well, Ralph and Cassus have pretty different positions. And on the one hand, it's really fine-grained, uh, as a legal issue, when do you grant mandamus, etc. But on the other, as a practical, uh, issue, and just, you know, to the extent they're focused on, and they ought to be, at this point where we are as a country, what's going on, the sort of broader consequences of slapping Boseberg down here, I think they will give serious consideration to en banc review. And if they do serious consideration to reversing, uh, what Ralph and Katsus have done. But this is where it stands for now. And even if it's reversed, the fattingness, clarity, righteousness of Boseberg's, um, opinion and stance has been sort of permanently undermined, and it just looks like a muddled political dispute, which is a damn shame because he's 100% right. And the administration was not just wrong, but if these facts are at all to be believed, again, he was just going to look into them. They are, um, breathtakingly brazen, lawless, authoritarian in just wanting to ignore a standing, valid judicial order.
So, this is going to play out a little bit more on this long-standing dispute dating from March. And it so sort of announces and sets up the, um, stance of the administration to potentially just ignore legal orders from the courts, which, of course, they've said, "Oh, we don't do that." And the evidence is very strong. They do. As a country, not to mention a legal system, we really have a right to get to the bottom of it. But the prospects have been diminished somewhat now by this DC Circuit opinion that may go en banc, but then might go to the Supreme Court. Anyway, a few more chapters still to play out in this very important and sort of seminal, uh, showdown between the administration and the courts. Talk to you later. Thanks for tuning in. If you enjoyed this video and other Talking Feds content, please take a second to like and subscribe. Talk to you later.